Dr Fatima Jabbar v Aviva Insurance UK Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 13 April 2022 |
| Neutral Citation | [2022] EWHC 912 (QB) |
| Docket Number | Case No: QA-2021-000170 |
| Court | Queen's Bench Division |
[2022] EWHC 912 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: QA-2021-000170
Aidan Reay (instructed by The Wilkes Partnership) for the Appellants
Adam Wolanski QC (instructed by BLM) for the Respondents
Hearing date: 5 April 2022
Approved Judgment
Introduction
This appeal relates to a claim by Dr Fatima Jabbar and DRJ55 Ltd (“the Company”). Dr Jabbar has a substantial practice providing medico-legal reports for personal injury claims arising from road traffic accidents (“RTAs”). The Company was incorporated by her to collect her fees and perform certain administrative tasks in connection with this practice. Since 2015, Dr Jabbar has provided reports through an entity called MedCo, which was established to facilitate the sourcing of such reports in claims under what is now called the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”).
The first and second defendants are subsidiaries of the third defendant, a multinational insurance company headquartered in the UK. They are often (in essence) the defendants to personal injury claims.
The claim arises from letters and emails sent by the defendants to solicitors acting for claimants about Dr Jabbar. The Amended Particulars of Claim plead four causes of action: (i) conspiracy to injure, (ii) unlawful means conspiracy, (iii) tortious interference with contract and (iv) defamation.
The defendants applied to strike out all four causes of action and for summary judgment on the defamation claim. The latter application was based on the contention (among others) that a defence of absolute privilege applied to answers to CPR Part 35 requests under a pre-action protocol.
The claimants applied to re-amend the Particulars of Claim to plead claims in malicious falsehood and under data protection legislation.
The hearing of the defendants' strike-out and summary judgment applications, and of the claimants' application for permission to amend, came before Deputy Master Toogood on 26 May 2021. She reserved judgment.
On 11 June 2021, she was about to circulate her draft judgment to the parties. However, at 07.01, she received an email from the claimants' solicitors in these terms:
“Further to the hearing before you in the above matter on 26 May 2021, we write on behalf of the Claimants to confirm that this matter has now been settled by agreement between the parties.
We understand from the Defendants' solicitors that they filed a copy of the signed consent order in the attached terms with the Court via CE file yesterday afternoon
In the circumstances, given that the claim has now settled, we respectfully request that judgment not be handed down in this matter.”
The draft consent order recorded the claims as dismissed and included provision that the claimants pay the defendants' costs. It did not say anything, one way or the other, about whether judgment would be handed down.
The Deputy Master responded as follows at 11.02:
“Thank you for your email.
It is unfortunate that it did not occur to the parties to notify me sooner as I spent many hours yesterday writing my draft judgment and was intending to send it to the parties this morning.
However I note the consent order and that this matter has now been concluded.”
In the light of that, the defendants' solicitor emailed at 14.07, explaining that the settlement had only been concluded late on the previous day. The email included this:
“…our clients take a rather different approach to the claimants to the question of the judgment. Whilst our understanding is that it is entirely a matter for you as to whether judgment is handed down, our clients consider that this would be very beneficial and in the public interest, especially as the application involved issues of law of general significance/wider public interest. In particular, the application of absolute privilege to communications such as those which were the subject of these proceedings is of importance to our clients and, we anticipate, to all insurers, especially given the role played by insurers in the pre action processes for personal injury claims.”
The defendants' solicitor referred to the decision of the Court of Appeal in Barclays Bank plc v Nylon Capital LLP [2011] EWCA Civ 826, [2012] Bus LR 542, before continuing:
“We would respectfully submit that the general significance of (and public interest in) the issues that you are considering in the judgment and the fact that the draft judgment is at an advanced stage weigh heavily in favour of judgment being handed down. Our clients would certainly, for example, consider any clarification of the law relating to the application of absolute privilege in this context to be of importance. In this respect we note that the claimants have provided no explanation as to why they consider that judgment should not be handed down.”
The Deputy Master invited and received written submissions on the question whether, in these circumstances, she should hand down her judgment. She decided that she should, for reasons contained in a judgment dated 25 June 2021, which she did hand down: [2021] EWHC 1729 (QB) (“the hand-down decision”). She refused permission to appeal against the hand-down decision. However, she indicated that she would not in fact hand down her judgment on the strike-out, summary judgment and amendment applications, to allow time for the claimants to renew their application for permission to appeal against her hand-down decision.
Permission to appeal against the Deputy Master's hand-down decision was granted by Tipples J on 24 November 2021.
The law
The key decision relied upon by the claimants is that of the Court of Appeal in Prudential Assurance v McBains Cooper [2000] 1 WLR 2000. That came shortly after the introduction of the present procedure for circulating draft judgments under embargo: see Practice Statement (Supreme Court Judgments) [1998] 1 WLR 825. The dispute, which related to an allegation of negligence on the part of surveyors, settled after circulation of the draft judgment. Brooke LJ, giving a judgment with which the other members of the court agreed, began by considering the principles that would have applied prior to the introduction of the new practice of circulating embargoed judgments.
As to that, Brooke LJ said at 2005F-G:
“It is elementary that parties to private litigation are at liberty to resolve their differences by a compromise, and that an unimpeached compromise represents the end of the dispute or disputes from which it arose: see Foskett, The Law and Practice of Compromise, 4th ed. (1996), P-90, citing Plumley v Horrells (1869) 20 LT 473, per Lord Romilly MR and Knowles v Roberts (1888) 38 ChD 263, 272, per Bowen LJ.”
He then referred to a series of House of Lords authorities dealing with the question whether the House could or should hear appeals which were “academic” appeals.
Counsel for both parties argued that, in a private law case at least, the guiding principle was that, if at any time before judgment was entered the parties told the court that they had compromised the dispute, “that was the end of the matter, unless the parties wished the court to take steps to assist them to put their compromise into effect”. That being so, Brooke LJ said:
“It is clear to me that the resolution of this appeal turns on the nature of the exercise that is being performed from the moment the draft judgment is delivered to the parties in accordance with the new practice.” (2006E-G)
As Brooke LJ understood the position, the existing principles were common ground and the appeal turned on the effect of the new procedure for circulation of draft judgments. The question was whether circulation of the draft judgment was part and parcel of the process of handing down the judgment or was a separate and anterior step. Having considered the background to the introduction of the new practice, he gave the answer at 2008F-G:
“…under the new practice the process of delivering judgment is initiated when the judge sends a copy of it to the parties' legal advisers. Provided there is a lis in being at that stage, it will be in the discretion of the judge to decide whether to continue that process by handing down the judgment in open court or to abort it at the parties' request. I agree with the judge that there may well be a public interest in continuing the process, notwithstanding the parties' wishes that he should not do so, and that there can be no question of a judge being deprived of the power to decide whether or not to do so simply because the parties have decided to settle their dispute after reading the judgment which has been sent to them in confidence.”
One of Brooke LJ's reasons for reaching that conclusion was that, if counsel were right, “powerful defendants like insurance companies could pick and choose which judgments they were happy to see published and which judgments they were willing to pay money to suppress”. Counsel had suggested that there might be
“one rule for first instance courts and a different rule for appellate courts. For the latter, it appeared to be conceded during the course of argument that this court might have a residual discretion to hand down its judgment notwithstanding the fact that the parties had compromised their dispute, if only to correct errors in the reported judgment in the court below or to reconcile conflicting lines of authority.” (2009A-C)
Brooke LJ distinguished the case before him from that in HFC Bank plc v HSBS Bank plc [2000] CPLR 197, The Times,...
To continue reading
Request your trial
-
The King on the application of DK v London Borough of Croydon
...2 is fact sensitive. 55 Having considered the matter I decided that judgment should be given on ground 1. In Jabbar v Aviva Insurance [2022] EWHC 912 (QB), Chamberlain J reviewed the authorities and approved the considerations which Deputy Master Toogood had identified for this type of cas......
-
Bartosz Fedorowicz v Prosecutor General's Office (Lithuania)
...No enquiry is needed. Even in a private law case, circulation of a draft judgment is a key step (see Jabbar v Aviva Insurance UK Ltd [2022] EWHC 912 (QB) [2022] 4 WLR 68). Moreover, the judgment decides a point of law of potential general interest (as the Respondent acknowledges) albeit in......
-
Dr Fatima Jabbar v Aviva Insurance UK Ltd
...– ‘the hand-down decision’). The Claimants' appeal against the hand-down decision was dismissed by Chamberlain J on 13 April 2022 ( [2022] EWHC 912 (QB)). By letter of 24 May 2022, the Claimants' solicitors confirmed to the court that no application had been made to appeal Chamberlain J's ......
-
Campbell v County Sligo Golf Club and Others
...LLP [2011] EWCA Civ 826, [2012] 1 All ER (Comm) 912 and the recent decision of the Queen's Bench in Jabbar v Aviva Insurance UK Ltd [2022] 4 WLR 68 which surveys the authorities. In his judgment in Barclays Bank PLC v Nylon Capital LLP, Lord Neuberger MR put the position thus: “[74] Wher......
-
A Reminder That Settling A Dispute Before A Reserved Judgment Is Handed Down May Not Prevent It Being Published
...for the court to weigh the public interest for and against handing down the judgment: Jabbar & another v Avviv Insurance Ltd & others [2022] EWHC 912 (QB). Although the reserved judgment in this case related to applications during the course of proceedings, the same principles would apply t......
-
High Court Hands Down Judgment Despite The Proceedings Having Settled Before Circulation Of The Draft Judgment
...approach was to weigh the public interest for and against handing down judgment: Jabbar & another v Avviv Insurance Ltd & others [2022] EWHC 912 (QB). Although the relevant judgment in this case related to applications during the course of proceedings, the same principles would apply to a r......